P. v. Weinhart

Filed 3/14/07 P. v. Weinhart CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Ronald L. Taylor, Judge. (Retired judge of the Riverside Super. Ct., sitting under assignment by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

Susan S. Bauguess, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Andrew Mestman, Deputy Attorney General, for Plaintiff and Respondent.

Defendant and appellant John Hans Weinhart (hereafter defendant) appeals from the judgment entered after a jury found him guilty of numerous felony and misdemeanor charges, set out in a 63-count amended information, all of which stemmed from defendants operation of a facility called Tiger Rescue.^[1] Defendant had operated the facility, at which defendant housed various exotic animals including tigers and leopards, in Glen Avon under permits from the appropriate governmental agencies including the California Department of Fish and Game (DFG) and the United States Department of Agriculture (USDA). Due to housing growth in the Glen Avon area, defendant was forced to move the facility in 1999 to a new location in Colton.

DFG officers obtained a search warrant for the Glen Avon property in April 2003 after receiving information that defendant had alligators and a tiger named Theo at that location.^[2] On April 22, 2003, around 7:00 a.m., DFG and Riverside County Animal Control officers executed that search warrant. As the officers approached defendants house, the second of two located behind a locked, gated entrance to the property, they were immediately struck by the stench of dead animals. In their subsequent search of the property, the officers found the carcasses of numerous dead animals, including about 30 tigers, in varying stages of decomposition. A broken refrigerator on the back patio of defendants house was full of decomposing dead animals. A juvenile tiger, later identified as Theo/C, who appeared to have mange which is a parasitic infection, was in a four-foot square cage on the patio, and another young tiger named Madison was secured to the patio by a chain no more than four feet in length. A veterinarian who later examined the tigers expressed the opinion that both animals were malnourished and had been subjected to needless suffering as a result of the fecal waste and urine contaminating the areas in which they were confined. The DFG and animal control officers also found other animals that had been neglected including dogs and chickens in cages without adequate food and water, and goats and burros that had difficulty walking due to overgrown hooves.

Defendant and his eight-year-old son were in the house when the officers entered to execute the search warrant. The inside of the house was filthy and smelled of animal feces. The kitchen sink was filled with dirty dishes, pots, and pans all covered with rotting food. Food in the refrigerator was rotten and unfit for human consumption. In the freezer compartment of the kitchen refrigerator, as well as in the freezer compartments of a refrigerator in the dining area and one on the patio, the officers found a total of 58 frozen tiger and leopard cubs. The veterinary pathologist who later examined the frozen cubs expressed the opinion that the animals were between three and five days old when they died and that the cause of death was starvation.

As reported and set out in the search warrant affidavit, the officers found two alligators in a bathtub in a bathroom. After they heard noise coming from the attic, the officers searched that area by lifting a ceiling tile and found nine infant tiger cubs and two infant leopard cubs (also referred to at trial as neonates), all of which were lethargic, cold, dehydrated, and hypothermic, conditions which are life threatening in the opinion of a veterinarian who testified at trial. When asked about the cubs, defendant told the officers that he did not know who had put them in the attic.

Based on the above-noted facts, and other evidence presented at trial, the jury found defendant guilty of one count of felony child endangerment in violation of Penal Code section 273a, subdivision (a) (count 1);^[3]13 counts of felony cruelty to animals, specifically, tiger and leopard cubs, and house cats in violation of section 597, subdivision (b) (counts 2 through 14); two counts of misdemeanor cruelty to animals in violation of section 597, subdivision (b) (counts 42 and 52); and numerous counts of misdemeanor violations of various sections of title 14 of the California Code of Regulations, that among other things require written logs be maintained documenting the care afforded to animals such as tigers and leopards, and specify the accommodations and amenities that must be provided for such animals (counts 18 through 39, 43, 45 through 51, and 54 through 63).^[4]

Based on the jurys guilty verdicts, the trial court suspended imposition of sentence and placed defendant on probation for five years, a condition of which included that he serve two years in county jail.

In this appeal, defendant raises various challenges to the jurys guilty verdicts, beginning with his assertion that the trial court should have granted his motion to suppress evidence recovered from his home because the search warrant pursuant to which that evidence was obtained did not accurately describe the premises to be searched, and concluding with his assertion that there were inconsistencies between the verdict form and jury instructions that require reversal of the guilty verdict on count 52. We conclude defendants claims, which we recount in detail below, are meritless, and therefore we will affirm the judgment.

DISCUSSION

We address defendants claims of error in the order they are set out in his opening brief. Therefore, we first address his assertion that the trial court erred in denying his section 1538.5 motion to suppress evidence.

1.

MOTION TO SUPPRESS

Defendant moved to suppress all the evidence recovered in the search of his house and surrounding property because the search warrant pursuant to which that search was conducted identified the property to be searched as 9474 Bellegrave but defendants address, and the address of the house and property searched, is 9478 Bellegrave. As described in the search warrant, which defendant attached as an exhibit to his suppression motion, The premise[s] to be searched is located at 9474 Bellegrave Avenue, Riverside, in Riverside County. The residence is located on the south side of Bellegrave Avenue, just west of Northcroft Street. It is described as two, single-family, single-story homes, in light tan stucco and enclosed by a gated fence. The two homes are located behind a tall, black wrought-iron gate. The gate has 4 star symbols mounted on it and has a dark-colored mesh tarp attached to it. The gate is bordered by a white arch with a lions head ornament on it. The gate is located at the end of a driveway, south from Bellegrave Avenue. There is a set of mailboxes on the west-side of the driveway, with light-green colored, single-storied homes behind it. The search warrant describes the areas to be searched as all grounds within the gate and perimeter fence, including the two residences and all outbuildings, storage buildings-temporary or permanent[-]and any vehicles on the premise[s]. Within the actual residences all rooms, attics, basements, garages, closets, desks, drawers, and cupboards . . . .

At the hearing on his suppression motion, defendant testified in pertinent part that there are two houses on two separate lots at the location on Bellegrave Avenue. The front house, where his wife and daughter live, is 9474 Bellegrave, and the back house, where he lives, and the property where the evidence was recovered, is 9478 Bellegrave, which is also the address that appears on all defendants correspondence to and from the DFG. Following the hearing, the trial court found that the search warrant described the property and areas to be searched with sufficient particularity to enable the searching officers to locate and identify those areas. Therefore, the trial court denied defendants motion.

Defendant contends that the trial court erred in denying his motion to suppress. We disagree.

Both the pertinent legal principles and underlying facts are undisputed. We begin with the principle that in reviewing the trial courts ruling on a motion to suppress evidence, we defer to the trial courts factual findings, upholding them if they are supported by substantial evidence, but we then independently review the courts determination that the search did not violate the Fourth Amendment. (People v. Memro (1995) 11 Cal.4th 786, 846, citing Peoplev. Loewen (1983) 35 Cal.3d 117, 123.)

The pertinent Fourth Amendment principle is also undisputed: A search warrant must particularly describ[e] the place to be searched. (U.S. Const., 4th Amend.; Cal. Const., art. I, 13; see also [] 1525.) The manifest purpose of this particularity requirement was to prevent general searches. By limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit. [Citation.] This purpose to limit the search authorization to things and areas for which probable cause exists and avoid exploratory searches must be kept in mind in determining the validity of a warrant containing an inaccurate description of the place to be searched. [T]he purpose of the exclusionary rule is . . . to deter illegal police conduct, not deficient police draftsmanship . . . . [Citation.] (People v. Amador (2000) 24 Cal.4th 387, 392.)

Whether the description of the place to be searched is sufficient is a question of law. Therefore, we independently decide that issue and in doing so rely on the facts found by the trial court if those facts are supported by substantial evidence. (People v. Amador, supra, 24 Cal.4th at p. 393.) Our resolution of this issue is further guided by the principle that [c]omplete precision in describing the place to be searched is not required. It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended. [Citation.] (People v. Amador, supra, at p. 392, quoting Steele v. Untied States (1925) 267 U.S. 498, 503.) Where one part of the description of the premises to be searched is inaccurate, but the description has other parts which identify the place to be searched with particularity, searches pursuant to such warrants have been routinely upheld. [Citation.] (People v. Amador, supra, at p. 392.)

Application of the above-noted principles to the description of the premises to be searched at issue in the search warrant that is the subject of this appeal leads us to conclude that the premises were described with sufficient particularity to enable the officer with the warrant to locate and search the correct location, despite the omitted street address. As set out above, the search warrant clearly states that the premises to be searched include both single story, single family residences located on the property at 9474 Bellegrave, and that are accessed through a large wrought iron gate. Although the two residences apparently each have separate street addresses, they are otherwise accurately and fully described, and the wrought iron gate affords the only access to both houses. The search warrant clearly identifies both residences as areas to be searched and that is precisely what the officers executing the warrant did search. Defendants contrary assertion notwithstanding, failure to identify both houses by their street addresses did not render the search warrant constitutionally inadequate. In other words, the trial court correctly denied defendants motion to suppress the evidence recovered from the search of the residences located on the property.

2.

MOTION FOR CHANGE OF VENUE

Defendant filed a motion for change of venue under section 1033, claiming that the extensive pretrial news and internet coverage created a reasonable likelihood that defendant could not receive a fair trial in Riverside County. Following a hearing, the trial court denied defendants motion, noting among other things that most of the pretrial publicity had stopped in 2003 long before the January 2005 start of defendants trial, and that voir dire would operate as the engine of truth to weed out prospective jurors who had already formed an opinion about the case.

Defendant contends the trial court erred in denying the motion for change of venue. We will not address the issue because defendant has not preserved it for review on appeal. In denying defendants motion for change of venue, the trial court offered defendant the opportunity to revisit the issue during jury selection if it appeared that defendant could not get fair and impartial jurors. As the Supreme Court explained in People v. Howard (1992) 1 Cal.4th 1132, when a motion for change of venue is denied without prejudice a defendant must renew the motion after voir dire of the jury to preserve the issue for appeal. (Id. at p. 1166; see also People v. Williams (1997) 16 Cal.4th 635, 654-655.) Defendant did not renew his motion following jury selection, and therefore has not preserved the change of venue issue.^[5]

3.

WHEELER^[6]MOTION

During jury selection, defendant made a so-called Wheeler motion after the prosecutor used five peremptory challenges, three to excuse prospective jurors whom defendant described as Hispanic. The trial court stated that it did not appear that the prosecutor was intentionally excusing an identifiable ethnic group, i.e., Hispanics, but nevertheless asked the prosecutor, if she wishes, to volunteer the reasons why she excused the three jurors in question. After the prosecutor offered those reasons, which we recount below, the trial court denied defendants motion. Defendant contends the trial court erred. We disagree.

The use of a peremptory challenge to excuse a prospective juror on the basis of race violates both the federal and state Constitutions. (Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69]; Wheeler, supra, 22 Cal.3d 258.) When a defendant believes that the prosecution is using peremptory challenges in such a manner, the defendant first must make a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citations.] (People v. Gray (2005) 37 Cal.4th 168, 186, quoting Johnson v. California (2005) 545 U.S. 162 , ___ [125 S.Ct. 2410, 2416, 162 L.Ed.2d 129].)

Here, the trial court initially found that defendant had not made the required prima facie showing. In that situation, the reviewing court should consider the entire record of voir dire of the challenged jurors. [Citation.] That view is consistent with the high courts recent reiteration of the applicable rules, which require the defendant to attempt to demonstrate a prima facie case of discrimination based on the totality of the relevant facts. [Citation.] (People v. Gray, supra, 37 Cal.4th at p. 186, quoting Johnson v. California, supra, 545 U.S. at p. ___ [125 S.Ct. at p. 2416].) If the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question, we affirm. [Citations.] [] When a trial court expressly rules that a prima facie case was not made, but allows the prosecutor to state his or her justifications for the record, the issue of whether a prima facie case was made is not moot. [Citations.] Rather, when an appellate court is presented with such a record, and concludes that the trial court properly determined that no prima facie case was made, it need not review the adequacy of counsels justifications for the peremptory challenges. [Citation.] (People v. Box (2000) 23 Cal.4th 1153, 1188.)

We agree with the trial court that defendant failed to make the requisite prima facie showing. Defendants entire showing on this pivotal threshold issue, as previously noted, was that the prosecutor had used five peremptory challenges, three of them to excuse Hispanics. In other words, defendant demonstrated that the prosecutor used three peremptory challenges to excuse members of a cognizable group. Put in Wheeler parlance, that is the totality of the relevant facts defendant cited to support his motion. (People v. Gray, supra, 37 Cal.4th at p. 186.) The showing is inadequate, but we will not belabor the point because we also have the benefit of the prosecutors explanations.

The prosecutor explained that she excused one of the jurors because he is a single father who might empathize with the defendant. Also, [h]e had absolutely no reaction whatsoever to the photograph of the dead baby cubs, and instantly said, Oh, that doesnt bother me at all. The prosecutor excused a second juror because [s]he is a single mother with a nine-year-old son and therefore might empathize with the female codefendant. The prosecutor stated: Additionally, she lives in Mead Valley, which I apologize, but sometimes I have a biased [sic] against certain areas of the county, because they concern me based on trips Ive made out there. [] So since this case involves a lot of stuff everywhere, unkempt conditions [of defendants house and the surrounding property] there are many places in Mead Valley that shared that condition . . . . The prosecutor excused the third juror in question because he was 18 years old, did not have a job or any prospects of a job, had no intention of doing anything with his life, described himself as careless, meaning to say that he didnt care anything about the case. Has never had a pet, never been in the military, and didnt seem to care at all about the proceedings. The trial court denied defendants motion after first reiterating that the court did not find a prima facie showing had been made, and then noting that the prosecutors explanations were well taken and founded on the responses and reactions of the three jurors.

We review a trial courts determination regarding the sufficiency of a prosecutors justifications for exercising peremptory challenges with great restraint. [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial courts ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.] [Citation.] (People v. Ward (2005) 36 Cal.4th 186, 200, quoting People v. Burgener (2003) 29 Cal.4th 833, 864.) The trial courts ruling on this issue is reviewed for substantial evidence. [Citation.] (People v. Ward, supra, at p. 200, quoting People v. McDermott (2002) 28 Cal.4th 946, 971.)

Defendant does not refute any of the facts cited by the prosecutor to explain her use of peremptory challenges to excuse the three jurors in question. Instead, defendant argues that the facts do not justify the prosecutors peremptory challenges. Defendants argument is irrelevant. As noted, our function is to review the trial courts ruling for substantial evidence. (People v. Ward, supra, 36 Cal.4th at p. 200.) Defendant does not dispute the pertinent facts and thereby effectively concedes that substantial evidence supports the trial courts ruling. Accordingly, for the reasons discussed we must conclude that the trial court properly denied defendants Wheeler motion.

4.

EVIDENCE OF UNCHARGED CRIMES

Over defendants objection, the trial court granted the prosecutors pretrial motion to admit evidence from a routine USDA inspection in November 2002 of Tiger Rescue in Colton during which numerous serious violations were noted, including tigers, lions, and leopards that appeared to be severely neglected. Many of the animals, including two tigers named Jia and Nemo, were thin, had rough coats and lesions. The animals shelters were inadequate, in that some were too small and all lacked overhead covering. The animals did not have adequate food and water. The facility was unsanitary and did not have adequate fly control. The trial court found the evidence, which consisted of photographs and clips from video footage taken during the inspection, was admissible under Evidence Code section 1101, subdivision (b), to show the absence of mistake or accident and to prove knowledge and intent. Defendant contends the evidence was admitted in error. We disagree.

The video footage and still photographs were taken by a USDA inspector during visits to defendants Tiger Rescue facility in Colton on November 22 and November 25, 2002, some five months before the April 2003 events that give rise to the Glen Avon charges at issue in defendants trial. The video clips show the emaciated physical condition of various tigers and leopards at the Colton facility and focus on two tigers, Jia, who was emaciated and had pressure sores on the pads of his paws, and Nemo, who had a claw growing into the pad of a paw. The video clips also show the overall conditions of the facility. The prosecutors theory was that the evidence was relevant under Evidence Code section 1101, subdivision (b), to show absence of mistake or accident and also to prove defendants knowledge and intent with respect to the Glen Avon charges. Defendant argued, in pertinent part, that the evidence was inadmissible under Evidence Code section 1101, subdivision (b), to show intent because the events and circumstances at Tiger Rescue in Colton were not sufficiently similar to those at the Glen Avon property.

As previously noted, the trial court granted the prosecutors motion, finding among other things, that the evidence was relevant under Evidence Code section 1101, subdivision (b), to show absence of mistake and to prove knowledge and intent. The trial court also found that the evidence did not run afoul of Evidence Code section 352 because the video clips, according to the prosecutor, had a total running time of eight minutes, and therefore did not involve an undue consumption of time. Moreover, the probative value of the evidence substantially outweighed its prejudicial effect and there was no real risk in the trial courts view that the evidence would confuse the jury.

Defendant contends as he did in the trial court that the circumstances in Colton were not sufficiently similar to those in Glen Avon and therefore the video clips and photographs of the Colton facility should not have been admitted at trial. Defendant also contends that the probative value of the Colton evidence was substantially outweighed by the potential of that evidence to create undue prejudice in the minds of the jurors. Again, we disagree.

As the Supreme Court explained in People v. Ewoldt (1994) 7 Cal.4th 380 (Ewoldt), in order for evidence of uncharged criminal conduct to be admissible under Evidence Code section 1101, subdivision (b), to prove some fact other than the defendants propensity to commit crime, the uncharged crime must bear sufficient similarity to the current crime. The court described a range of similarity between the charged and uncharged offenses, and explained that the least degree of similarity was necessary in order for evidence of the uncharged offense to be admissible as circumstantial evidence of the defendants intent. (Ewoldt, at p. 402.) [T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal, intent accompanying such an act . . . . [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance. [Citations.] [Citation.] (Ibid.)

Ewoldt counsels that, in addition to making the threshold determination regarding similarity, a trial court also must weigh the probative value of the evidence against its potential for prejudice under Evidence Code section 352, a procedure that requires extremely careful analysis. (Ewoldt, supra, 7 Cal.4th at p. 404, quoting People v. Smallwood (1986) 42 Cal.3d 415, 428.) The probative value of the evidence must substantially outweigh the probability of prejudicial effect in order for evidence of an uncharged crime to be admissible. (Ewoldt, at pp. 404-407.)

Although defendant cites the pertinent legal principles, his application of those principles to the facts of this case, charitably described, is superficial. The video clips of the Colton facility reveal acts of neglect similar to those at issue in this case, and include injuries to the two tigers that resulted from defendants failure to provide proper facilities. Those same general conditions and similar resulting injuries also existed five months later in Glen Avon when the DFG served its search warrant emaciated animals, animals with overgrown hooves and neglected paws, a tiger restrained by a four-foot chain on the patio and another confined in a cage without the requisite exercise area and amenities. Under Ewoldt, supra, the video clips depicted circumstances sufficiently similar to those at issue at trial and therefore were admissible under Evidence Code section 1101, subdivision (b), to prove defendants knowledge and intent and to negate a claim of accident or mistake.

Defendants assertion that the probative value of the evidence was outweighed by its potential for prejudice and therefore should have been excluded under Evidence Code section 352 is equally meritless. At the outset we note that on appeal we review a trial courts ruling under Evidence Code section 352 for abuse of discretion. (People v. Valdez (2004) 32 Cal.4th 73, 108.) On this issue, defendant contends that the video clips of the tigers in Colton had a prejudicial impact on the jury; an impact that was heightened because defendant was not punished for any of the conditions in Colton and therefore the jury might have punished defendant in this case for his acts of neglect at the Colton facility. The contention begs the dispositive issue, namely, whether the probative value of the video clips and photographs taken at the Colton facility was substantially outweighed by the potential for undue prejudice. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, prejudicial is not synonymous with damaging. [Citation.] (People v. Karis (1988) 46 Cal.3d 612, 638.) Defendant has not demonstrated that the probative value of the evidence was substantially outweighed by the potential for undue prejudice, and therefore we must conclude that the trial court did not abuse its discretion in admitting that evidence at trial.

5.

SUFFICIENCY OF THE EVIDENCE

Defendant contends, albeit as separate claims of error, that the evidence presented at trial was insufficient to support his conviction on count 1 for child endangerment, on counts 2 through 12 for cruelty to the tiger cubs, and on counts 13 and 14 for cruelty to domestic cats. We disagree for reasons we now explain.

In reviewing a challenge to the sufficiency of evidence, the reviewing court must determine from the entire record whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, the reviewing court must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. (People v. Mincey (1992) 2 Cal.4th 408, 432.) Substantial evidence is evidence which is reasonable, credible, and of solid value. (Peoplev. Johnson (1980) 26 Cal.3d 557, 578.)

A. Child Endangerment Conviction

As the trial court instructed the jury in this case, in order to find defendant guilty of child endangerment in violation of section 273a, subdivision (a), as alleged in count 1 of the amended information, the evidence had to show that defendant had care or custody of his son, Michael, that defendant willfully caused or, willfully and as a result of criminal negligence, permitted Michael to be placed in a situation where Michaels person or health may be endangered, and that defendants conduct occurred under circumstances likely to produce great bodily harm or death. (CALJIC No. 9.37.)

Defendant contends the evidence was insufficient to show that the circumstances or conditions were likely to produce great bodily harm or death to Michael. In making this assertion, defendant does not dispute that the evidence presented at trial showed that eight-year-old Michael was in defendants house watching television when the DFG officers arrived to execute the search warrant. Outside on the patio, near the house and visible through sliding patio doors, defendant kept two adolescent tigers, one restrained only by a chain and the other constrained by a screwdriver stuck in the gate of its cage. Michael testified that the chained tiger often swiped at him. That same tiger grabbed the legs of two different men as they walked by on the morning of the search. Defendant also does not dispute that the DFG agents found the decomposing carcasses of 30 dead tigers outside defendants house, and in an inoperable freezer on the patio, officers found the decomposing carcasses of other exotic animals. Animal feces were everywhere, inside and outside the house. Apart from the generally filthy and deplorable conditions both inside and outside the house, defendant also kept powerful animal tranquilizers, along with the hypodermic needle needed to inject them, in a refrigerator in the house. Defendant also kept two alligators in a bathtub in an apparently unlocked bathroom. The alligators snapped at the animal control officer who removed them from the bathtub.

The jury could find that the above-noted evidence established the existence of conditions that individually or collectively posed a substantial risk of great bodily harm or death to Michael. In arguing otherwise, defendant does not refute the cited evidence, but instead cites other evidence or argues other inferences the jury could draw from the cited evidence.^[7] In other words, defendant has shown only that other evidence was presented that could support other inferences or findings. However, defendant has not demonstrated that the evidence presented at trial was insufficient to support the inferences and findings the jury actually made in this case, as revealed by their verdict finding defendant guilty of child endangerment.

B. Animal Cruelty

Defendant contends the evidence was insufficient to support the jurys verdicts on counts 2 through 12 finding him guilty of animal cruelty in violation of section 597, subdivision (b), with respect to the tiger and leopard cubs found in defendants attic. We will not address this contention in detail because like his challenge to the sufficiency of the evidence to support the child endangerment conviction, defendant cites only the evidence that supports his defense claim that he put the cubs in the attic on the morning of the search to keep them warm and to prevent the animal control officers from taking them. Defendant does not refute the other evidence presented at trial, namely that the infant cubs were lethargic, dehydrated, and hypothermic when found and that their condition was life threatening. In short, defendant has shown only that there was conflicting evidence presented at trial and that some of the evidence presented if believed by the jury would have supported a different outcome. However, defendant has not demonstrated that the evidence presented at trial does not support the outcome actually reached by the jury, that outcome being their verdicts finding defendant guilty of cruelty to animals in violation of section 597, subdivision (b), as alleged in counts 2 through 12.

Defendant also contends the evidence was insufficient to support the jurys verdicts finding him guilty of cruelty to two domestic cats as alleged in counts 13 and 14 because the evidence did not establish that the cats, both of which had severe cases of mange, belonged to defendant or that he was responsible for their care. Once again, defendant does not cite the evidence that supports the jurys verdicts. Instead, he cites his own trial testimony in which he stated, in pertinent part, that he did not own house cats or domestic cats and did not want cats on his property because they ate the tigers food and had fleas.

The evidence presented at trial includes testimony of an animal control officer who stated in pertinent part that the two cats in question were hanging out on the patio and were unfazed by the two tigers. The cats were friendly and remained at defendants house the entire time the search was being conducted. The animal control officer also testified that when she presented defendant with forms relinquishing his interest in the animals, defendant signed one for each cat. The cited evidence is sufficient circumstantial evidence to support an inference that both cats belonged to defendant.^[8]

6.

INCORRECT JURY INSTRUCTION

The prosecution prepared a 17-page special jury instruction that set out the possible verdicts on each count, i.e., guilty and not guilty, and that also identified the person, situation, or animal that was the subject of each count. Rather than have the trial court read that instruction to the jury, the prosecutor and defendants attorney stipulated that the trial court could submit the written special instruction to the jury. That instruction contains an error that defendant apparently did not notice during trial it states that the tiger Madison is the subject of count 52 when in fact the tiger Theo/C is the alleged victim of that animal cruelty charge, and correctly identified as such in the pertinent verdict form. Defendant contends that error, i.e., the discrepancy between the special instruction and the verdict form, requires reversal of his conviction on count 52 because it is uncertain whether the jury intended by its verdict to find [defendant guilty of] a violation of section 597, subdivision (b) as to Madison, or to Theo/C.

We are inclined to agree with the Attorney Generals assertion that defendant has forfeited any claim of error as a result of his stipulation that the trial court could instruct the jury on the possible verdicts in writing, rather than orally, by submitting the special instruction to the jury. But even if defendant has preserved the issue for review on appeal, the purported error is harmless. The verdict forms are correct and from those forms we can determine, among other things, that the jury found defendant guilty of animal cruelty with respect to the tiger Madison, as alleged in count 42 (not count 52), and found defendant guilty of animal cruelty with respect to the tiger Theo/C as alleged in count 52. Simply put, it is apparent from the verdict forms that the jury intended to find defendant guilty of cruelty to both tigers, in violation of section 597, subdivision (b), as alleged in counts 42 and 52, respectively.^[9]

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

Acting P.J.

We concur:

/s/ King

J.

/s/ Miller

J.

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^[1]Defendants wife, Marla Smith, was also named as a defendant but at the start of trial she pled guilty to various charges, the details of which are irrelevant because she is not a party to this appeal.

^[2]Theo also was called C or See in the trial court proceedings and therefore is identified in the parties briefs as Theo/C, which is the designation we will use in the remainder of this opinion.

^[3]All further statutory references are to the Penal Code unless indicated otherwise.

^[4]The jury found defendant not guilty on animal cruelty counts relating to burros and a goat (counts 15, 16, and 17) and misdemeanor regulatory violations for failure to properly feed Madison and Theo/C (counts 44 and 53). The trial court dismissed two counts under section 1118.1 at the conclusion of the prosecutors case-in-chief that had charged defendant with misdemeanor regulatory violations for breeding tigers and leopards without the required permits (counts 40 and 41).

^[5]Defendant argues that he was not required to renew his change of venue motion because the trial court stated that the denial was a final denial of the motion. According to defendant, the quoted language means the motion was not a denial without prejudice and therefore defendant was not required to renew his motion for change of venue. Defendant simply is wrong. As noted above, the trial court invited defendant to renew his request for change of venue if it appeared during voir dire that defendant would be unable to select fair and impartial jurors. Whatever the semantic issues might be, the dispositive fact is the trial court stated its willingness to reconsider the issue if the pool of prospective jurors in fact was tainted. Defendant did not renew his motion and from that we may and do conclude that the jurors actually selected were fair and impartial. Moreover, in arguing that the trial court wrongly denied his change of venue motion, defendant does not claim that the actual jury was biased. Instead, he claims that he made an adequate showing to support his motion and therefore the trial court should have granted the change of venue request.

^[6]People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).

^[7]For example, in countering the danger posed by the various animals on the property, defendant cites the fact that Michael was not allowed to go to certain areas unless accompanied by his father or mother. Defendant also contends that Michaels living situation is similar to that of a child living on a farm that has large animals like cows and horses that could also pose a danger to a child.

^[8]Defendant does not challenge the sufficiency of the evidence to prove any other element of the charges related to the two domestic cats. Therefore, we will not discuss the other elements or evidence.

^[9]As his final claim, defendant contends that reversal of the judgment is required due to the cumulative effect of the errors committed in the court below. As set out above, we have found only one error the previously discussed discrepancy between the special instruction and the verdict form on count 52. Because only one error occurred in the trial court, and we have concluded it was harmless, we must reject defendants final assertion.